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State v. Murphy

Court of Appeals of Ohio, Seventh District, Mahoning

December 30, 2019

STATE OF OHIO, Plaintiff-Appellee,
BRYANT MURPHY, Defendant-Appellant.

          Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16CR345

         JUDGMENT: Affirmed.

          Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, for Plaintiff-Appellee and.

          Atty. Anthony P. Meranto, for Defendant-Appellant.

          BEFORE: Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.


          Robb, J.

         {¶1} Defendant-Appellant Bryant Murphy appeals the decision of the Mahoning County Common Pleas Court denying his motion to dismiss on double jeopardy grounds after a mistrial was granted at the request of the defense. Appellant contends the prosecutor's intentional act of speaking to the victim about her testimony while on a lunch break between her cross-examination and redirect examination satisfied the double jeopardy test of prosecutorial misconduct intentionally calculated to cause a mistrial. For the following reasons, the trial court's judgment is affirmed.


         {¶2} Appellant was indicted for a January 9, 2016 incident reported by a correctional officer at the prison where Appellant was confined. He was charged with the offense of harassment with a bodily substance under R.C. 2921.38 divisions (A) (offender confined in detention facility) and (B) (law enforcement officer as victim), fifth-degree felonies. It was alleged that he squirted a substance containing urine and/or other bodily fluids through the cuff-port of his cell and into the face of the correctional officer with intent to harass, annoy, threaten, or alarm her. A superseding indictment added a repeat violent offender specification and a charge of felonious assault under R.C. 2903.11(A)(1) (knowingly causing serious physical harm), a second-degree felony. The bill of particulars explained that the incident caused the victim to fall (contributing to an eye injury) and resulted in emotional distress requiring psychological treatment.

         {¶3} The jury was seated July 30, 2018. On the third day of trial, the victim testified Appellant used a bottle to spray her in the face with what she believed was urine and feces which caused her fall to the floor; the substance entered her mouth and eyes and got on her hair and uniform. (Tr. 32, 36-38). On cross-examination, defense counsel claimed it was untrue that Appellant threw feces at her and referred to test results reporting the tested sample of the substance contained urine. (Tr. 60-62). Defense counsel also asked if the prison considered terminating her, eliciting that her doctor at a psychological care center recommended she be separated from Appellant (upon her return to work after eye surgery). (Tr. 69-70).

         {¶4} After the victim's cross-examination but before redirect, a lunch recess was called at 12:23 p.m. Her testimony resumed at 1:40 p.m., and the court reminded her that she was still under oath. The prosecutor asked the witness if they spoke prior to her taking the stand, and she answered in the affirmative. He then asked if she was informed that testing by BCI found urine in the sample taken from her shirt. (Tr. 139). The prosecutor also asked the victim to explain why defense counsel asked if the prison contemplated terminating her, and she suggested her doctor originally advised her to avoid contact with inmates in general but then wrote a letter recommending she avoid contact with Appellant. (Tr. 140). At this point, defense counsel requested a sidebar, which was not recorded.

         {¶5} Returning to the record, the court said defense counsel inquired as to whether the prosecutor spoke to the victim during the lunch break. (Tr. 141-142). The prosecutor disclosed that he went to the victim-witness office with the victim during the break and the victim's doctor was present as she would be testifying next. The prosecutor said the doctor tried to calm the victim down and the doctor's upcoming testimony was discussed. (Tr. 144). He said they also talked about the questions defense counsel posed to the victim and the questions the prosecutor would ask on redirect; the prosecutor insisted he did not coach the witness on her answers. (Tr. 143, 146). When the court asked the victim what they talked about on lunch break, she said she criticized defense counsel. (Tr. 146).

         {¶6} Defense counsel opined the situation (of speaking to a witness on break) was akin to a prosecutor asking to speak privately to the witness during her testimony on the stand. He noted he was not accusing the prosecutor of a nefarious or malicious act and acknowledged the meeting may have been conducted with innocent intent. (Tr. 142, 144). Defense counsel argued a mistrial must be declared when a prosecutor speaks to a witness who is under oath on a break in their testimony in the presence of another witness. (Tr. 144).

         {¶7} The court granted the motion for a mistrial, stating: "We had an occurrence which I felt, while not nefarious, and while not intended, and while not necessarily improper, certainly possessed the appearance of impropriety * * *." (Tr. 148). The court memorialized the granting of the mistrial motion in an August 8, 2018 judgment. On December 10, 2018, Appellant filed a motion to dismiss on double jeopardy grounds. He reasoned that although the prosecutor may have been unaware the ...

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